Human Resources Committee on Feb. 22nd, 2018

[Mona Fortier, Liberal, Ottawa—Vanier, ON]

Madam Johnson, here's some time for you if you want to add some ways to reinforce this.

[Sheryl Johnson]

I do. With regard to what could be included in the legislation to help protect witnesses, as well as complainants, as well as respondents—everybody who is part of the process—I would recommend that there be, either in the bill itself or in regulations, bare minimum standards that are included in companies' policies or programs. When they have their written policy, I would see it having to be posted in the workplace so employees know about it, or available electronically, or however it's accessible, so people know they have an avenue.

Have it in there, as well, that all of them have to include that there will be no reprisal for anybody who participates in the process or makes a complaint, if it's made in good faith. The caveat needs to be in there that there won't be any reprisals for anything done in good faith, whether you're a witness or whether you're a complainant.

It should also state in there that everything will be as confidential as possible. I do investigations myself. Sometimes you have to give out who the complainant's name is in the circumstances, because you have to do the investigation. Have in there a statement that it will be as confidential as possible.

Last, with regard to all the different horses that you can ride federally, in Ontario it's only been between human rights and civil that there's a limitation: you can do one or the other. You might want to consider that with regard to if it doesn't really fit.... It depends on how you want it addressed. The definition of workplace violence and harassment under part II is far broader than human rights. It's not limited to human rights. I would see there being some overlap, because it can be based on enumerated grounds, but having it so that you can only do occupational health and safety versus human rights doesn't really fit in the circumstances. Generally, have it that if you're going to choose to do it this way, then you can't do the other.

[Mona Fortier, Liberal, Ottawa—Vanier, ON]

Thank you very much.

Mr. Dorval or Mr. Lamy, do you have any other suggestions?

[The Chair, Liberal, Bryan May]

Be very brief, please.

[Guy-François Lamy]

I would add a decisive element for a policy against psychological harassment to be effective. It should be ensured that information is accessible to employees. You mentioned the culture change in your question. It is also speaking that we will succeed in changing the culture.

I fully agree with Ms. Johnson. She mentioned that confidentiality must be respected, but that the limits to this confidentiality, which are necessary to conduct an inquiry effectively, must also be taken into account.

[The Chair, Liberal, Bryan May]

Thank you.

MP Vandenbeld is next.

[Anita Vandenbeld, Liberal, Ottawa West—Nepean, ON]

Thank you very much, all of you.

It seems to me, in listening to the testimony that we heard this morning and the testimony this afternoon, there is a gap in terms of policy versus implementation.

I know, Ms. Johnson, that you are an expert in terms of implementation. I know that Bill C-65 isn't just about having a policy and implementing the policy. We need to make sure that there are processes in place and that there is recourse if the processes are not followed.

Ms. Johnson, could you talk a little bit about how you...? Sometimes this is one of the systemic issues or part of the workplace culture. How do you bridge the gap between having the perfect policy and people who probably believe the policy is being implemented, and then the lived experience of the employees on the ground who would tell you otherwise?

[Sheryl Johnson]

I think it's the idea of collaboration again, as well as the idea of being open-minded as an employer. You want to believe you're doing everything, but I always believe in and encourage employers to do workplace audits, to go in, see the culture of the organization, see what it's doing, see how the employees treat each other, and see how the employees treat the employer's belongings and property. That gives you a pretty good example of whether they think you're actually doing what you say you're doing as an employer, because if you don't respect your employer, you're not going to respect your employer's property.

If an employer is saying that everyone is to be treated with dignity, and people are not, they must look at the fact that they have high absenteeism or high turnover, all these different things. I think that as organizations, with regard to implementation, they have to be realistic and open-minded beyond just having the best policy.

Education is one of the most important parts with regard to implementation. As was said by my friend with regard to leadership, the leadership needs to own it, and not just talk the talk, but walk the walk.

[Anita Vandenbeld, Liberal, Ottawa West—Nepean, ON]

How do we get more people to step forward? We heard yesterday that 22% of people in the public service say they've experienced harassment, yet very few of them actually take action.

I know one of the solutions that was proposed was having an arm's-length body, like a tip line or something like that. I'd like to know more about the ombudsperson office that Ms. Mandal mentioned, and then I'll go to the rest of you on how to get more people to step forward.

[Marina Mandal]

I think, as Ms. Johnson alluded to, it's a really great way to ensure that there is the chilling effect that other stakeholders have talked about, the concerns that employees have from a privacy perspective as well as from a fear of reprisal perspective.

In terms of the concerns they have about coming forward, a lot of that, if not all of it, is taken away with the anonymous tip line. Information is disclosed about the person who is being accused—not necessarily, but it is disclosed. The complainant can stay anonymous, and the investigation can proceed in the background. In most cases the employee ombudsman's office reports directly to the president and CEO. Again, that independence through the lines of business, including the person's own business, is extremely helpful.

There are other ways in which privacy, confidentiality, and fear of reprisal are managed at the banks, but for the particular function you're talking about, that's the general outline.

[Anita Vandenbeld, Liberal, Ottawa West—Nepean, ON]

Okay.

Ms. MacEachern or Ms Fortin, would you comment?

[Manon Fortin]

I think creating those independent avenues for employees to report what they're living through is really important. The ombudsman is one that we have as well. The whistle-blowing line is another. Ultimately, it's about the action that follows. The witnesses are watching. Having been involved in a few of these through some of the independent lines, I think that's probably most important.

On the leadership piece, building those things into performance management plans, really taking care to put the right words there, and evaluating leaders appropriately according to that is very critical in all of this. I'm not sure you should put that in the law, but that's what I think could work.

[Derrick Hynes]

Consistent with that, when I asked our member organizations about this, many were proud of the way they're handling it. It starts at the top. There is leadership involved. Offices that are handling complaints report directly into the CEO. There's a culture around the importance of bringing forward complaints. A clearly defined process is in place, a well-communicated policy. Training is delivered to those who have to do the investigations. There's a growing awareness building around the issue.

To Ms. Mandal's point about the ombudsman, I've heard that some of our members have that. Some have anonymous tip lines. The number of avenues you can provide a complainant to bring forward a complaint certainly seems to enhance the number of reports as well.

[Anita Vandenbeld, Liberal, Ottawa West—Nepean, ON]

One of the deterrents for many people in putting forth a complaint is seeing that other people have done it before, but no action or discipline or anything has taken place. That's a bit of a dilemma, because of course it may be that privacy needs have actually prevented people from being able to say when some of those actions have taken place.

How do you overcome that? Is there anything in Bill C-65 that would help with that, or could there be?

[Sheryl Johnson]

There could be.

In Ontario, when the complainant is a worker and an investigation is done, both the complainant and the respondent get advised of the result of the investigation as well as any implementation of progressive discipline or any action taken by the employer. They have to be informed. I know of employers who have done the investigation and have done all that properly, but didn't follow through with advising the parties, and they actually got an order from the minister to advise. There is some teeth with regard to that.

[The Chair, Liberal, Bryan May]

Thank you very much.

Now, for six minutes, we have MP Genuis, please.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Thank you, Mr. Chair.

I think Mr. Dorval talked about vexatiousness as a key element to psychological harassment. Is vexatiousness a subjective concept? In whose eyes would this be—in the eyes of the harasser, the harassed, or a dispassionate observer? How do you define “vexatiousness”?

[Yves-Thomas Dorval]

I would ask Mr. Lamy to answer your question.

[Guy-François Lamy]

The concept of vexatious conduct is not understood in a purely subjective way under the Quebec regime. It is understood from the perspective of a reasonable person in the same circumstances. That is very important. Whether or not the conduct is considered vexatious depends from one person to another, but under Quebec's regime it is understood from the perspective of a reasonable person in the same circumstances. This criterion is widely used in other circumstances in Quebec civil law and has been incorporated here as well. Its application has not really been problematic.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

I think we usually call that the “reasonable people” rule.

I wonder if any other witnesses have thoughts on how we define “vexatiousness”.

[Sheryl Johnson]

You can define it in the legislation. What is vexatious and what isn't is a generally understood legal concept, and I think it's the same.... We've had no problems dealing with that in Ontario. Just as my friend has mentioned with regard to Quebec, it's generally understood, so using that word generally isn't a stumbling block.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Thank you.

I want to follow up on some of the discussion about Canada Post and some of the previous testimony on that. To me, this gets to the heart of the question of what constitutes the definition of “harassment”.

We heard a gentleman speak previously about how the response by Canada Post to...I think the phrase he used was “innocent absenteeism”, or something like that. He said that in his view, their response constituted harassment.

I'm curious to know how Canada Post responds to innocent absenteeism. As an employer with a parliamentary office here, I think you need to have some kind of response to absenteeism, innocent or otherwise. Does it create problems for an employer when that is qualified in some quarters as a form of harassment, depending on what the response is?

[Ann-Therese MacEachern]

There are a couple of things. When people are absent from work, as an organization, as an employer, we want to see them be well, so following up and making sure people have the right support is absolutely important. That's the principle we keep in mind. Do we talk to people and make sure they're getting the support through their physician or otherwise? Yes, we do.

At Canada Post we have a pretty extensive disability management team. They're professionals, and their job is to ensure that the right medical processes are being followed and the right support is provided. With respect to absenteeism, again, we have a desire to make sure that people do get the right attention so that they're back at work, which is probably a healthy place to be.

Maybe Manon has experience that she can add to that.

[Manon Fortin]

I think you've said it all. All I'm going to say is that as a leader in operations, I always encourage team leaders to be good human beings and to welcome their employees back to work. They know their employees the best.

Welcome them back to work, ask them if they're okay, and provide the support systems that Ann-Therese talked about if they're not. I think that's just being a good leader, so I certainly don't see it as harassment in the definition that we know.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

I'll ask a follow-up question and then maybe open it up.

Yes, employers of course want to do everything they can, generally speaking, to help their employees be well and be able to come to work, but is there a risk in a situation of an employee basically not doing their job in the proper way and seeking to use a complaint of harassment as a way of basically countering their employer's efforts?

Ms. Johnson is shaking her head.

Please tell me how we avoid that potential risk.